Cardenas-Parra v. 540 Fulton Assocs.
| Decision Date | 23 March 2023 |
| Docket Number | Index No. 506232/2019,Motion Sequence No. 3 |
| Citation | 2023 NY Slip Op 30901 (U) |
| Parties | ROMAN CARDENAS-PARRA, Plaintiff v. 540 FULTON ASSOCIATES LLC, JENEL MANAGEMENT CORP., PAV-LAK INDUSTRIES, INC. and PAV-LAK CONTRACTING INC., Defendants 540 FULTON ASSOCIATES LLC, JENEL MANAGEMENT CORP., PAV-LAK INDUSTRIES, INC. and PAV-LAK CONTRACTING INC., Third-Party Plaintiffs, v. RC STRUCTURES INC., Third-Party Defendant |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION/ORDER
The following papers read herein: NYSCEF Documents
Notice of Motion and Affidavits (Affirmations) Annexed and Exhibits ...............................75-93
Opposing Affidavits (Affirmations) and Exhibits ................................................................95-109
Reply ..............................................................................................................................110-117
Upon the foregoing papers, plaintiff moves, in mot. seq. 3, for an order, pursuant to CPLR 3212, granting him partial summary judgment on the issue of liability against defendants 540 Fulton Associates LLC, Jenel Management Corp. and Pav-Lak Contracting Inc. pursuant to Labor Law §240(1) and §241(6), and also against Pav-Lak Contracting Inc. only pursuant to his Labor Law §200 and common law negligence claims. This action was previously discontinued as against defendant Pav-Lak Industries Inc. [Doc 17]. The third-party action was also discontinued [Doc 18].
Plaintiff commenced the instant action on March 21, 2019 by electronically filing a summons and verified complaint. Plaintiff claims therein that defendant 540 Fulton is the owner of the premises. The pleadings further state that the other defendants were the construction manager (Pav-Lak) and the owner's management company (Jenel) and were thus statutory agents of the owner as this term is defined in the Labor Law and interpreted by the courts of this State. He was employed by non-party RC Structures Inc., which subcontracted with defendant Pav-Lak, the construction manager, to perform the concrete superstructure work at the premises, a new 43-story building being constructed at 540 Fulton Street Brooklyn, NY. There was no general contractor. Plaintiff alleges that defendants failed to provide him with a safe place to work, and failed to offer proper equipment and/or safety devices so as to prevent him from being injured at the worksite.
Plaintiff alleges that on December 18, 2018, while he was working for non-party RC Structures Inc. at the subject premises, he was "caused to fall from an elevated height off of a wet slippery, defective makeshift scaffold," [Doc 76 Aff in support ¶3] to the ground below and sustain serious physical injuries. The complaint asserts causes of action pursuant to sections 240(1), 241(6) and 200 of the Labor Law, as well as claims for common law negligence. Plaintiff also claims that at all relevant times, he was engaged in work within the scope of the Labor Law.[1] Defendants (other than Pav-Lak Industries) subsequently interposed an answer on May 28, 2019, [Doc 6] generally denying plaintiff's allegations. On June 18, 2019, defendants commenced a third-party action against RC Structures Inc., who then interposed a third-party answer. On January 28, 2020, defendants/third-party plaintiffs discontinued the third-party action [Doc 18]. On October 28, 2019, plaintiffs discontinued the action as against Pav-Lak Industries. The instant partial summary judgment motion was filed on November 9, 2022. On February 24, 2023, plaintiff filed a note of issue with a demand for trial by jury, certifying that discovery is complete and that this matter is ready for trial. The motion is thus timely.
Plaintiff avers that non-party RC Structures was retained by Pav-Lak as the superstructure contractor for the project. Plaintiff started work at this job site about four weeks prior to the date of his accident. On the day of his accident, there were more than thirty RC employees on site. On the day of his accident, the first floor had just been cast, after the basement level had been completed. [Doc 76 ¶39, citing plaintiff's EBT transcript Doc 84 at Page 34]. "Plaintiff's foreman, Dennis, told him to continue the unfinished work from the day before, so after signing in, Plaintiff proceeded to continue his stripping work, which consisted of removing plywood from the deck that had been placed so concrete could be poured" [Doc 76 at ¶41, citing plaintiff's EBT at pp. 32-33, 37-38].
The plaintiff's accident occurred while plaintiff was performing this form-stripping work. He was on a makeshift scaffold, he claims, because the scaffold had not arrived yet [EBT Doc 84 Pages 45, 48]. A photograph of the work area is at Document 92. They were removing plywood from the ceiling, which had recently been poured. He testified that he had unclipped or unhooked his yo-yo from one place "so I can go to the next place because my line didn't allow me to continue moving forward," [Page 46] but he was not able to hook to the next location before he fell. He testified that he slipped, tried to hold onto a railing to break his fall, but the railing broke, and he fell [Doc 84 Page 49]. He testified that he fell approximately five feet [id.], and landed on debris, which included plywood, metal, posts, and dry concrete. The wood he was standing on was slippery and wet as it was exposed to the elements and it had been raining [Page 55]. One of his co-workers (Vasquez) provided an affidavit and states therein that "there was no other way to reach the plywoods on the ceiling except on the makeshift scaffold and hooking off to move around" [Doc 88 lines 12-14], and that "as he stepped on the scaffold railing it broke off and caused Roman to fall about 8 feet to the ground" [Doc 88 Lines 16-18]. Another co-worker (Vera) executed an affidavit that also claims that they could not access the plywood which they were stripping without sometimes unhooking, stating "we would need to hook off to pass and move on the makeshift scaffold to get to the plywood" [Doc 89 Lines 10-12].
Plaintiff claims, with regard to Labor Law §240(1), that defendants "breached their non-delegable duty under Labor Law §240(1) in failing to provide Plaintiff with the proper equipment and/or safety devices so as to protect him against elevation-related hazards, specifically a fall from a wet, slippery, defective, makeshift scaffold, which failure was a proximate cause of Plaintiff's incident and resulting injuries" [Doc 76 ¶5]. With regard to Labor Law §241(6), plaintiff claims that defendants "violated Labor Law §241(6) as a matter of law, specifically New York State Industrial Code §23-1.7(d) prohibiting employers from permitting any employee to use an elevated working surface in a slippery condition, which also proximately caused Plaintiff's incident and resulting injuries" [id.]. With regard to Labor Law §200, plaintiff claims defendant Pav-Lak "breached its duty pursuant to Labor Law §200 and common law negligence in permitting a dangerous condition to exist and remain at the Premises despite having both the authority to control the injury producing activity and, at a minimum, constructive notice of the dangerous condition which proximately resulted in Plaintiff's injuries" [id.].
Plaintiff asserts that these Labor Law violations and breaches of the common-law duty of care proximately caused his injuries.
Labor Law 240(1)
In support of his motion with respect to Labor Law §240(1) against all three defendants, plaintiff first notes that this statute subjects owners, contractors and their agents to a nondelegable duty to provide adequate protection to workers against the risk of elevation-related construction site accidents. Plaintiff points out that if the duty to provide adequate protection is breached, owners, contractors and their agents are vicariously liable for injuries that are proximately caused by the breach. Here, plaintiff claims, for Labor Law purposes, 540 Fulton was an owner, Janel was an agent of the owner, and Pav-Lak was the construction manager and equivalent to a general contractor. Counsel argues that the statute required defendants herein to furnish workers such as plaintiff with adequate safety devices that provide proper protection against elevation-related risks. Plaintiff states he was injured when [Doc 76 ¶78]. Further, counsel avers that "Defendants' failure to comply with their absolute duty to provide Plaintiff with a safe means to perform his work, including providing a stable, secure scaffold and proper tie-off location for his lanyard, was a proximate cause of Plaintiff's fall and resulting injuries, and accordingly, is sufficient to establish Plaintiff's prima facie entitlement to summary judgment under Labor Law §240(1)" [id. ¶80].
Plaintiff contends that all three defendants are thus subject to absolute vicarious liability under Labor...
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